Oceanspace Unlimited Company v Dun Laoghaire Rathdown County Council

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Butler
• Judgment Date: 31 July 2025
• Neutral Citation: [2025] IECA 160
• Docket Number: Court of Appeal Record Number: 2024/184

In the Matter of An Application Pursuant to Section 50 of the Planning and Development Act 2000, As Amended

Between/

Oceanscape Unlimited Company

Applicant/Respondent

and

Dún Laoghaire-Rathdown County Council

Respondent/Appellant

and

Minster for Education

Notice Party

[2025] IECA 160

Costello P.

Allen J.

Butler J.

Court of Appeal Record Number: 2024/184

High Court Record Number: 2022/339JR

THE COURT OF APPEAL

CIVIL

UNAPPROVED

NO REDACTION NEEDED

JUDGMENT of Ms. Justice Butler delivered on the 31 ^st day of July 2025

Introduction

1 . This appeal raises a complex question of statutory interpretation in somewhat unusual circumstances. The issue arises from the defence by a local authority (the appellant) of legal proceedings taken by the applicant (the respondent to the appeal) to challenge the adoption by the local authority of a development plan under section 12 of the Planning and Development Act 2000 as amended (“PDA 2000”). It is common case that the making of a development plan is a function reserved to the elected members of the local authority. I will for convenience refer to the parties as the “applicant” and the “local authority”.

2 . The applicant now argues that the statement of opposition filed on behalf of the local authority should be struck out because, in filing it, the chief executive of the local authority did not have the express authorisation of the members, i.e. the elected council, as – it contends – was required under section 153(2) of the Local Government Act 2001 (“LGA 2001”) as amended. It is also common case that although the chief executive advised the elected council of the existence of these and other related proceedings (related in the sense that they involve challenges to the same development plan, albeit focussing on different portions of it), he did not seek and was not provided with the express authorisation of the elected council to defend these proceedings nor to take any step for the purposes of doing so.

3 . The local authority argues that it was not necessary for the chief executive to secure the express authorisation of the elected council because, under section 153(2) he is deemed to have such authority. In a more elaborate argument, the local authority contends that as the provision of authorisation under section 153(2) is not a reserved function under the LGA 2001 it is, by default, an executive function which is properly exercisable by the chief executive.

4 . Thus, the court is faced with two conflicting interpretations of what section 153(2) requires in order for the defence of these judicial review proceedings to be lawfully conducted by the chief executive on behalf of the local authority. The interpretation advanced by the applicant is focused on the text of section 153(2) itself and the requirement for the “ express authorisation of the elected council”. That advanced by the local authority requires section 153(2) to be read in the context of the LGA 2001 as a whole and in particular in the context of Chapters 1 and 2 of Part 14 in which the functions of a local authority are divided between the elected council and the executive, most notably in sections 131 and 149. The interpretation advanced by the applicant found favour with the trial judge (Farrell J. [2024] IEHC 381) who held that section 153(2) required “ a positive step in that the elected members must provide express authorisation” (para. 54). Following a subsequent hearing as to the consequences of this finding, she struck out the local authority's statement of opposition, and granted liberty to file new opposition papers should the elected council provide the necessary authorisation before a stipulated date. This appeal was filed by the local authority well in advance of that date. Whilst there was some suggestion in the applicant's Respondent's Notice that the local authority intended to seek express authorisation from the elected members (in which case the applicant contended that the appeal would become moot) there was no information before the court that this had been done. Instead, the court understands that the substantive proceedings have been adjourned before the High Court from time to time awaiting the outcome of this appeal.

5 . In dealing with what is essentially a net legal point of statutory interpretation, I propose to look first at the somewhat unusual circumstances in which the issue has arisen and then to look at the relevant statutory provisions (of which there are many), outlining as I do so the arguments made by the parties based on them and the view taken by the trial judge. I will then outline briefly the principles applicable to statutory interpretation. The parties were largely in agreement as to these principles but their application to the particular circumstances of the case were seriously disputed. I will then address the arguments made in light of these principles in order to reach a view as to what section 153(2) of the LGA 2001 means or requires.

Background Circumstances

6 . As noted above, the circumstances in which this issue has arisen are unusual. The underlying proceedings involve what has become a relatively routine type of challenge to the making of a development plan by a local authority. In this case the plan was made and adopted by the local authority on 10 ^th March 2022 and took effect following the publication of the requisite notice in April 2022. The plan has a lifespan of six years and therefore is, and was described as, the Dún Laoghaire-Rathdown County Development Plan 2022–2028.

7 . The applicant's challenge focusses on the attachment of a specific local objective (“SLO”) to provide for primary and post-primary education facilities on lands which are owned by the applicant. This, it is contended, materially impacts on the applicant's property rights by effectively sterilising its lands and precluding their development for so long as the SLO remains attached to them. The applicant makes various complaints, the detail of which is not relevant for present purposes save to note that in the High Court the applicant placed some reliance on the fact that elements of the challenge relate to parts of the statutory process which are under the control of the chief executive. These include liaison with the Department of Education, the carrying out of public consultations, and the provision of allegedly inadequate reasons for rejecting the submissions made by the applicant's professional advisers in the report made by the chief executive to the elected council. The local authority in its statement of opposition disputes these grounds.

8 . The applicant's challenge was one of three brought to the adoption of this plan. One of these, Bartra Property (Dublin) Ltd. v. Dún Laoghaire-Rathdown County Council was disposed of and rejected by O'Donnell J. in a judgment delivered on 4 ^th September 2024 ( [2024] IEHC 535), in which the section 153(2) issue is not mentioned. The other, Colbeam Ltd. v. Dún Laoghaire-Rathdown County Council was the subject of an interlocutory judgment (Holland J. [2023] IEHC 450) which permitted the joinder of additional parties to the case. Notwithstanding the delay that such joinder inevitably causes, it appears the substantive judicial review has since been heard and judgment is currently awaited. Correspondence provided to the court indicates that on 8 ^th July 2024, after the delivery of the High Court judgment in this case, the elected members of the local authority passed a resolution providing express authorisation for the defence of the proceedings in Colbeam.

9 . Meanwhile, this challenge remains at a very preliminary stage. If the High Court judgment is upheld, then opposition papers have not yet been lawfully filed. If the High Court judgment is overturned, the substantive proceedings still remain to be heard. It is now over three years since the adoption of the plan which has a six-year life span. The benefit to the applicant of succeeding in the proceedings is commensurately reduced the longer the proceedings remain extant. This is because the SLO to which the applicant objects remains prima facie attached to its land until the proceedings are determined precluding any non-educational development which it might otherwise wish to undertake.

10 . The reasons for the delay are not entirely clear. These proceedings were issued promptly by the applicant, well within the eight-week period allowed for the institution of such proceedings under section 50(6) of the PDA 2000. However, the statement of grounds filed on 28 ^th April 2022 was subsequently amended on four occasions between that date and 21 ^st December 2023. Obviously, amending the statement of grounds necessitated the filing of amended statements of opposition by the local authority. Undoubtedly circumstances can arise where something of significance has been inadvertently omitted from a statement of grounds. Most usually this occurs where an applicant only becomes aware of a point or comes into possession of evidence necessary to make a point after the statement of grounds has been filed. However, this level of tweaking of pleadings seems extraordinary, especially in light of the very compressed timeframe within which the proceedings must be issued in the first place. It is also extremely difficult to understand why there should have been so many repeated amendments in a challenge relating to a public process such as this as the material underlying the process is generally publicly available from the outset.

11 . Be that as it may, this matter was listed for hearing, apparently for the 3 ^rd of June 2024. However, prior to that date the registrar contacted the parties by email to say that the assigned judge had listed the matter for mention on 29 ^th May 2024 as she was considering whether it was appropriate to adjourn the proceedings to await judgment in other proceedings, namely Jones v....